Thread by @barandbench

Hijab Row: Karnataka High Court full bench to continue hearing batch of petitions against hijab ban in educational institutions

#HijabBan #HijabCircular #KarnatakaHijabRow #KarnatakaHC

LIVE UPDATES -Day 7

Hijab Row: During the last hearing the State govt had told the High Court that Hijab must pass Constitutional Morality test in Sabarimala, Triple Talaq rulings of Supreme Court

#HijabControversy #KarnatakaHijabRow #karnatakahighcourt

Read story: bityl.co/B1Lq

Hijab Row: LIVE UPDATES from Karnataka High Court - Day 7

#HijabControversy #KarnatakaHijabRow #karnatakahighcourt #HijabCircular

Read LIVE ACCOUNT of hearing here: bityl.co/B1Lt

Bench assembles, hearing begins.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Sr Adv. Jayna Kothari seeks permission to make submissions on behalf of intervenor.

Court reiterates that it will decide whether to allow intervenors after hearing petitioners and respondents.

#HijabControversy #KarnatakaHijabRow #karnatakahighcourt #HijabCircular

Advocate General Prabhuling Navadgi resumes arguments.

Bench asks for one clarification on the Government Order.

"You have argued that GO is innocuous and does not ban hijab and you have left it to CDC to prescribe uniform which shall be adhered to," CJ Ritu Raj Awasthi.

#HijabControversy #KarnatakaHijabRow #karnatakahighcourt

"Please read paras 19 and 20 of your Statement of Objections," CJ Awasthi to AG Navadgi.

Navadgi reading out paras 19 and 20.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

What is its import? What is your stand? Can hijab be permitted in institutions. If institutions permit, then you don't have any objection? Asks CJ Awasthi

We will take a decision as and when such a situation comes up: AG Navadgi

#HijabControversy #KarnatakaHijabRow

You have to take a stand. It was argued by them to permit hijab of same colour of uniform. They have also argued that dupatta which is part of uniform be permitted to be worn above their heads? So can that be permitted? CJ Awasthi

#HijabControversy #KarnatakaHijabRow

The answer is we have not prescribed anything. But as a matter of principle, the answer is in preamble of Karnataka Education Act which is to foster secular environment: AG Navadgi

So the stand of the State is that anything which introduces religious aspect should not be there: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

My submission is to leave it to the institution: Navadgi

So your stand is State has not said anything but has left it to the institution: CJ Awasthi

AG: yes

So should Court now go into Article 25 violation etc if that is the stand of the State govt? CJ Awasthi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

You are saying college committee will decide. So are we supposed to see what they have done? CJ Awasthi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Since they are not statutory bodies, can they be regulated by court order? CJ Awasthi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Where the difficulty would come is one of the questions which would be posed (in an individual case) would be is whether a person wearing hijab can be permitted inside college: AG Navadgi

The student will then contend that it is their fundamental right under Article 25. Institution will take a stand that it is for uniformity and discipline: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

This means that Your Lordships will have to go into this issue: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

In the Sabarimala judgment, Justice DY Chandrachud said that court assumes a central role in such matters and it is ultimately the Court which will have to decide whether a religious practice sought to be enforced under Article 25 can be enforced or not: AG Navadgi

The GO is consciously innocuous.

The petitioners have not said "permit us to wear hijab as dress" but they have said "permit to wear hijab as religious practice": AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Is Essential Religious Practice also applicable to conscience: Justice JM Khazi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

The concept of freedom of conscience is something which relates to belief or non-belief. What you manifests your conscience results in religious practice: AG Navadgi

In Constituent Assembly Debates this very question of how to interpret freedom of conscience was raised.

It is what you believe or not believe. What you practice is religious practice. So the essential religious practice does not come within freedom of conscience: AG Navadgi

KT Shah and KM Munshi were against inclusion of conscience. Then Dr. BR Ambedkar suggested it because he said there are persons who do not believe in the existence of God or religion like Charvakas: Justice Dixit

AG Navadgi refers to Constituent Assembly Debates: Shri Ghanshyam Singh Gupta said, freedom of conscience means a man is free to have a religion or not have a religion. If he has a religion he is free to profess it and is free to practice the diktats of his religion.

What it means to suggest is that people can have religion or no religion. Then the question of practising it does not arise (when one does not have religion): AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi: Dr Ambedkar went into issue of "Why do you insist on having the right to propagate religion?"
This was in the context of Article 28 - "No religion instruction shall be provided in any educational institution wholly maintained out of State funds"

"The third thing which I would like to mention in this connection is that unfortunately the religions which prevail in this country are not merely non-social; so far as their mutual relations are concerned, they are anti-social..." AG Navadgi quoting Dr. Ambedkar.

"The Muslims believe that anyone who does not believe in the dogma of Islam is a fakir not entitled to brotherly treatment with the Muslims. The Christians have a similar belief," AG Navadgi quoting Dr. Ambedkar.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

"In view of this, it seems to me that we should be considerably disturbing peaceful atmosphere of an institution if these controversies with regard to truthful character of any religion and the erroneous character of the other were brought into juxtaposition in school itself."

"I, therefore say that in laying down in article 22 (1) that in State institutions there shall be no religious instruction, we have in my judgment travelled the path of complete safety," AG Navadgi quotes Dr. Ambedkar.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Some like KN Munsi said that if we are to adopt ourselves as secular State then why do we have religion as a right. That it may result in some religion having hegemony over others: AG Navadgi

They eventually reached consensus like public order, morality, health: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The concept of social welfare to all religions was discussed by the founders. Hindu temples for instance were thrown open to all persons which was originally not there. In fact, Dr. Ambedkar who constituted a committee of Sardar Patel, Shyama Prasad Mukherjee etc on this: Navadgi

It was they who said that concept of social reforms should be introduced to all religions. The first para of social reforms is to all religions, (but) throwing open of Hindu temples only to Hindu temples - the prevailing circumstances at that point: AG Navadgi

Justice Dixit: The secularism which the makers of our Constitution is not akin to the American Constitution. It is not a wall between church and govt. We oscillate between Sarva Dharma Samabhav on one hand and Dharma nirapekshata on the other.

AG continues with CAD. Refers to telling statement by Dr. Ambedkar saying 'do not allow religion to come into institution'.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

Bhagavad Gita, Bible, Quran all have noble thoughts but they wanted to keep it out of educational institutions, because there was likelihood of dischord or clash. So they (Constitution makers) want to consciously keep it out: AG Navadgi

Justice Dixit: Our Constitution has not enacted what Karl Marx said, that religion is the opium of the masses.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi: Freedom of conscience has been used as a contradistinction to practice of religion. It is not confined only to non-believers. It applies to believers also.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi: Freedom is what you have within you. When you exercise it, it becomes a right.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi: The law with regard to Essential Religious practice is authoritatively settled by the Supreme Court. Article 25 does not say "essential", it is only religious practice.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

Art 25 speaks about protection of religious practice and not ERP. It is impossible to define what exactly is religion: AG Navadgi

This is especially for Hindu relgion. Therefore the theory evolved (in Shiroor Mutt) was that Article 25 does not protect religion but only essential religious practice. The legal journey has gone from Shiroor Mutt to Sabarimala: Navadgi

In Shiroor Mutt, SC took the stand that what is essentially religious is protected.

Finally in Sabrimala they said that you have to show that the practice you want protected has to be essential to religion: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

In order to determine that, they have fantastically expounded the same by five tests in Sabarimala judgment: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG: First case to refer to is The Durgah Committee, Ajmer .vs Syed Hussain Ali And Others of 1961

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG reading out the Durgah committee judgment

indiankanoon.org/doc/1262157/

AG now refers to Javed & Ors vs State Of Haryana and Ors, decided in 2003

indiankanoon.org/doc/57675307/

Haryana had brought in a legislation preventing persons from contesting who had multiple marriages. Javed approached Court arguing that Muslims are permitted to have more than one marriage.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

It was argued that the same should therefore be treated as part of Article 25.

The Court held "the protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion." AG Navadgi

"A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by the Article," AG reading Javed judgment.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG now refers to Commissioner Of Police & Ors vs Acharya J. Avadhuta And Anr in 2004

indiankanoon.org/doc/1723440/

In that case, it was argued that Tandava dance is part of Article 25: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The Court held that "what constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion.": AG Navadgi

"Alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non- essential part or practices." AG reading out from judgment.

AG: The tests for determining whether practice is essential is - 1. Is it the core belief upon which the religion is founded, 2. Is the practice fundamental to the religion, and 3. If the practice is not followed, will the religion vanish or will it cease to be religion?

AG referring to Venkata swamy case in which Goud Saraswat Bahmins right to do puja and how others cannot be allowed to perform puja in those temples.

They traced their lineage to how the idols were brought by their forefathers from Kashmir.

The Supreme Court upheld that.

In context of hijab, there is indication that food and dress cannot be considered ERP: AG Navadgi

AG refers to Shiroor Mutt.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

This was relied upon by them

But refer to A.S.Narayana Deekshitulu Vs. State of A.P. & others, says AG

"There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which in not considered a religious activity...."

It is not every such activity which can be declared ERP and the Court should take pragmatic approach.

I wanted to bring this to the notice of court because Shirur Mutt was read by petitioners as if that dress would automatically qualify as a religious practice: AG Navadgi.

AG Navadgi: The entire law on what is essential religious practice and what is not is consolidated in the Sabarimala case.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

Before going into that, KM Munshi spoke about this in the Constituent Assembly Debates, which was also quoted with approval by the Supreme Court in Shayara Bano. He said we should put our foot down on all religious practices which will divide the country: AG Navadgi

He calls for a Uniform Civil Code, AG Navadgi says, reads out judgment of CJI JS Khehar with caveat it is dissenting judgment.

indiankanoon.org/doc/115701246/

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi now relying on Sabarimala judgment.

It was a 5-judge bench judgment with Justice Indu Malhotra giving dissenting judgment: AG

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi referring to Justice Rohinton Nariman's concurring judgment in Sabarimala case.

indiankanoon.org/doc/163639357/

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG: Article 25 has different sections. In order to establish a right, it has to be

- first proved as a religious practice,

- then an "essential" religious practice.

- then that it is not against public order, morality, health

- and not against any other fundamental right.

This Judgement (Sabrimala) declares the law on essential religious practice as it stands today. Justice DY Chandrachud brings out the nuances of what is ERP: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG reading out judgment of Justice DY Chandrachud.

indiankanoon.org/doc/163639357/

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG reading out Sabariamal judgment

AG refers to para 256 of the Sabarimala judgment.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi: Earlier the question was what is "essentially religious".

Then shift in judicial approach took place and it now enjoins upon the Court to determine that even if it was "essentially religious", it should be shown that it is "essential to religion": AG Navadgi.

Thus, it has to be shown that wearing of the hijab is essential to Islam: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG continues to quote from the Sabarimala case, where the Court quoted the case of Durgah Committee, Ajmer v Syed Hussain Ali.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular #HijabBan

AG quotes Sabarimala on Tandava dance and Ananda Margis.

"The essentiality test came to be linked to the “fundamental character” of the religion. If the abrogation of a practice does not change the fundamental nature of the religion, the practice itself is not essential."

Sabarimala judgment is the last of the decision and it CAN BE TAKEN AS LAW OF LAND as it stands today: AG Prabhuling Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

"If a practice is optional, it has been held that it cannot be said to be ‘essential’ to a religion. A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice," AG Navadgi quoting Sabarimala

From a reading of these, I will carve out the following principles to be applied to present case:

1. The practice should be fundamental to that religion;
2. If that practice is not observed, it would result in change of the religion itself;

3. The practice must precede the birth of the religion itself. The foundation of religion must be based on that or must be simultaneously there along with the birth of religion. It must be co-extensive with that religion.

4. Binding nature. If cannot be optional. It has to be compulsive so that if one disobeys, he/ she cease to be part of that religion: AG Navadgi.

In this background, the Court must examine the claim of the petitioners: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The petitioners are seeking for a declaration of a particular dress format to become part of religious sanction so as to bind every woman who follows Islamic faith. That is the seriousness of the claim: AG

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The burden rests upon them, according to the SC judgements to prove the claim that practice of hijab is binding in the religion: AG

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

AG Navadgi quotes from a number of petitions before the Court, saying that they claim hijab is a part of their essential religious identity.

They are saying that they not only want to bind the petitioners but want to bind everybody to this (that hijab is essential): AG

It gives rise to various sentiments etc. They out to have shown more circumspection particularly before a Constitutional court: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

My submission is that petitioners have not placed any material whatsoever - they have placed zero material - to substantiate their claim for declaration that wearing of hijab is an essential religious practice: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

The Constitutional Court must examine the material they have placed with regard to the law on essential religious practice.

They have quoted Quran and I will deal with that: AG Navadgi.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

State is responsible equally as much as petitioners to assist the Court to show the Court whether hijab is ERP or not. Our independent examination shows that it does not: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

Whenever reliance was placed on Quran to show certain practices as essential, in at least four instances, the Supreme Court negatived it: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

First was Qureshi case in 1959 when they quoted Quran to say sacrifice of animal is ERP. The Court negatived it: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

Second was Javed's case they said Islam protects multiple marriages and any law which hits that should go. The Supreme Court turned it down: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The third was Ismail Faruqui case where govt acquired a mosque. They challenged it saying praying in mosque is fundamental principle of Islam. It was negatived by Court: AG Navadgi.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The fourth was Shayara Bano case where instant triple talaq was struck down: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

The fifth one arose in Karnataka High Court where Wakf land was leased out to a particular hotel. It was challenged on the ground that hotel would serve wine and pork which is haram in Islam. It was turned down HC: AG Navadgi.

#HijabControversy #KarnatakaHijabRow #HijabBan

Adv. Tahir had made some grievances on excesses by authorities. He gave me a letter stating the same.

I have conveyed it to Chief Secy and I have asked him to convene a meeting of all concerned either today or tomorrow morning to address it: AG Navadgi

How they would resolve it, I will communicate it to him. Rest assured, I have spoken to principal secy of Education Dept and they have assured nothing of this sort will be....: AG Navadgi

All actions will be reported to Your Lordship as well as to my learned friend. Let him be rest assured as to nothing untoward would happen: AG Navadgi

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

Sr Adv. A M Dar requests they should be able to show how hijab is essential religious practice.

CJ Awasthi: This is not a public platform where anyone can stand up and begin speaking. We are in the middle of submissions.

Another Advocate says that girls are being asked to remove the hijab in front of people. They should at least be given a separate private place. TV channels are going and shooting this. This is an abuse of child rights

Bench: You go and argue before TV channel only.

Can the Advocate General look into this: The Lawyers requests

We will take care. Rest assured: AG Navadgi

Hearing to continue at 2.30 pm tomorrow.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt #HijabCircular

[Hijab Row] Supreme Court's Sabarimala judgment on Essential Religious Practice test is law of the land: State to Karnataka High Court

#HijabCircular #HijabRow #KarnatakaHC #karnatakahijab

Read story here: bityl.co/B1Xp

Fakir may be read as Kafir. Error regretted.